Henderson v. State

816 S.W.2d 845, 1991 Tex. App. LEXIS 2449, 1991 WL 200827
CourtCourt of Appeals of Texas
DecidedOctober 9, 1991
Docket2-90-008-CR
StatusPublished
Cited by15 cases

This text of 816 S.W.2d 845 (Henderson v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Henderson v. State, 816 S.W.2d 845, 1991 Tex. App. LEXIS 2449, 1991 WL 200827 (Tex. Ct. App. 1991).

Opinion

OPINION

HILL, Justice.

Ricky Henderson appeals his conviction by a jury of the offense of burglary of a habitation. Finding an enhancement paragraph true, the jury assessed Henderson’s punishment at fifteen years in the Texas Department of Corrections, now the Texas Department of Criminal Justice, Institutional Division.

*847 Henderson contends in two points of error that the trial court erred by overruling his Batson motion and by admitting a photographic lineup used in this case.

We affirm because the court’s ruling that the prosecutor’s strikes were made for racially neutral reasons was not clearly erroneous, because the Texas Rules of Criminal Evidence eliminate bolstering as a valid objection since it is no longer hearsay, and because we hold beyond a reasonable doubt that the evidence that Henderson complains of did not contribute to his conviction.

Henderson urges in point of error number one that the trial court erred by overruling his Batson motion. The State’s purposeful or deliberate denial of jury participation because of race violates a defendant’s rights under the Equal Protection Clause of the United States Constitution. Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

After a hearing on Henderson’s Batson motion, the trial court found that one of the veniremembers struck, veniremember number thirty-three, would not have been reached, and that the court personally observed that veniremember number twenty-five had particular trouble understanding the questions presented to her. The court also found, as to each of the venire-members struck, that the reasons for their being struck were racially neutral and not racially biased.

We will review the record in its entirety by considering the voir dire process including the racial constitution of the venire, the prosecutor’s neutral explanations, and the appellant’s rebuttal and impeaching evidence to determine if the trial court’s findings are clearly erroneous. Whitsey v. State, 796 S.W.2d 707, 726 (Tex.Crim.App.1989) (opinion on reh’g).

In our review, we will consider in our analysis the nonexclusive list of factors that the Texas Court of Criminal Appeals has characterized as factors that weigh against the legitimacy of a race-neutral explanation. These factors are:

1. The reason given for the peremptory challenge is not related to the facts of the case;
2. there was a lack of questioning to the challenged juror or a lack of meaningful questions;
3. Disparate treatment — persons with the same or similar characteristics as the challenged juror were not struck;
4. Disparate examination of members of the venire, i.e., questioning a challenged juror so as to evoke a certain response without asking the same question of other panel members; and
5. an explanation based on a group bias where the group trait is not shown to apply to the challenged juror specifically.

Id. at 713-14.

Henderson is African-American. The State struck all four African-Americans from the venire. The struck venire-members included Jennie Howard, venire-member number twenty-five; Barbara Pip-kins, veniremember number twenty-eight; Clara M. Warren, veniremember number twenty-nine; and Willia V.P. Johnson, veniremember number thirty-three.

At the hearing held in connection with Henderson’s Batson motion, the prosecutor testified that she struck Jennie Howard because she had filled out her information sheet up until question four, left the rest of the first page blank, filled in about half of the second page, and filled in only three questions on the third page, a page that had some very crucial questions. She said that she did not ask her why she had not filled in the blanks. Additionally, the prosecutor said that Ms. Howard seemed uncertain about the difference between a jury and a grand jury.

The prosecutor testified that she struck Barbara Pipkins because she had a masters degree in social work, because she used the word “incorporated” with her sorority, because she was a liberal, and because she believed in rehabilitation. The prosecutor said that because her aunt had a masters degree in social work it caused her to have a prejudice against people who had such a degree. She also indicated that the people *848 she had heard refer to their fraternity or sorority as incorporated had a tendency to be brainwashed by that fraternity or sorority-

The prosecutor said she struck Clara Warren because Ms. Warren stopped filling out her questionnaire after question seventeen, even though several of the questions called for “yes” or “no” answers. She said that she felt that if the juror could not understand the judge’s information sheet she might not be able to follow what was going on in the courtroom.

She said that she did not ask the jurors that she struck whether they did not fill out their forms because they were not familiar enough with the language to be able to read and write the language. She said that she struck a Caucasian lady on the panel who did not fill out her questionnaire. She said that she had made the decision to strike the three African-American and the Caucasian veniremembers who had not completely filled out their forms before she had seen the panel and learned that three of the four were African-Americans.

On further questioning by her co-counsel, the prosecutor recalled that Ms. Howard had been twenty-five or thirty minutes late that morning, and that her investigator had noticed that Ms. Johnson, who was seventy-seven years of age, was unable to hear.

We first note that one of the venire-members, Willia V.P. Johnson, was too far down on the venire list to have sat on the jury in any event. Consequently, Henderson could not have suffered any harm by the State’s use of one of its peremptory challenges against her. We also note that the prosecutor stated that she was aware that Ms. Johnson was unable to hear and that she left a large portion of her jury questionnaire blank. On appeal, Henderson contends that a Caucasian veniremember, number fourteen, also did not complete her form, yet was not struck. Upon comparison, it appears to us that this veniremember’s form is more nearly fully completed than Ms. Johnson’s.

With respect to the other two prospective veniremembers who did not completely fill out their forms, we have examined the jury forms and find that these tv/o veniremembers left out their answers to a significant number of the questions, more than those omitted by the Caucasian veniremember. Henderson complains that the prosecution failed to ask the venire-members why they had failed to fill in the blanks, suggesting that perhaps the venire-members might just have been unfamiliar with the language.

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Bluebook (online)
816 S.W.2d 845, 1991 Tex. App. LEXIS 2449, 1991 WL 200827, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henderson-v-state-texapp-1991.